Eric Holder Makes it Clear DOJ's Culture — Not the Prosecutor — Is the Problem in Swartz Case

Does not think piling on of federal charges in order to scare out a plea deal is an issue


"Discretion" means just beating them up a bit, not breaking their legs
Department of Justice

I've gotten so caught up in Filibuster-mania that I have neglected to make note of Attorney General Eric Holder's recent questioning by the Senate over the Justice Department's behavior in the prosecution of Aaron Swartz, the open access advocate who committed suicide rather than face prison for his activism via hacking.

The Department of Justice stands accused of hammering Swartz with a number of federal charges that could have landed him years in prison for breaking into a Massachusetts Institute of Technology closet and arranging to download tons of academic journal reports to make them freely available to the public. U.S. Attorney Carmen Ortiz has been criticized for overcharging Swartz in order to essentially intimidate him into accepting a plea bargain that would land him a few months in federal prison.

While many folks (including some commenters here at Hit and Run) wanted Ortiz removed and lay the blame on her for this prosecutorial overreach, Holder's testimony makes it pretty clear that Ortiz is not some rogue attorney operating on her own. David Kravets at Wired transcribed some of Holder's questioning by Sen. John Cornyn (R-Texas):

The Texas lawmaker asked: "Does it strike you as odd that the government would indict someone for crimes that would carry penalties of up to 35 years in prison and million dollar fines and then offer him a 3- or 4-month prison sentence?"

Holder responded: "I think that's a good use of prosecutorial discretion to look at the conduct, regardless of what the statutory maximums were and to fashion a sentence that was consistent with what the nature of the conduct was. And I think what those prosecutors did in offering 3, 4, zero to 6 was consistent with, with that conduct."

Holder is missing the point. The issue is not whether a few months is an appropriate sentence for Swartz's crimes but rather whether hanging the possibility of several years over the young man's head in order to essentially force him to take a plea deal for a relatively minor crime is appropriate. Cornyn went on to explain to Holder the "bullying" component of the Department of Justice's behavior and the overall scariness for an average citizen to be targeted by the federal government as a criminal, but it didn't seem to register (you can watch video of their exchange at the Wired link).

Attacking and attempting to remove Ortiz over her decision to go after Swartz (not to mention trying to seize a family's hotel in Tewksbury, Mass.) won't fix it. Ortiz is just a symptom, not the disease.